Gerdes v. Omaha Home for Boys

Decision Date02 May 1958
Docket NumberNo. 34364,34364
Citation166 Neb. 574,89 N.W.2d 849
PartiesJohn D. GERDES and Blanche Gerdes, Appellants, v. The OMAHA HOME FOR BOYS, Omaha, Nebraska, Fred Butler and O. M. Campbell, first and real name unknown, Appellees.
CourtNebraska Supreme Court

Syllabus by the Court

1. An equity case is tried de novo on the record in this court and only the evidence that is properly before it is considered.

2. If negotiations between parties result in an agreement in reference to the subject matter thereof and if they reduce the agreement to writin, execute, and deliver it, the writing, in the absence of fraud, mistake, or ambiguity, is the only competent evidence of the contract.

3. If the existence of a written contract has been induced by prior or contemporaneous oral agreement, parol evidence is not admissible to add to, contradict, or vary the terms of the written contract.

4. If a written contract contains a complete obligation without ambiguity as to the object and extent of the engagement, it is conclusively presumed that the whole agreement of the parties was included therein. The fact that a matter has been omitted which might have been embodied therein will not open the door to the admission of parol evidence in that regard.

5. The parol evidence rule is not merely one of evidence but is a rule of substantive law which declares that certain kinds of facts are legally ineffective and forbids them to be proved.

6. A written contract expressed in unambiguous language is not subject to interpretation or construction and the intention of the parties to such a contract must be determined from its contents.

7. Contemporaneous instruments will generally be construed together in order to determine the nature of the transaction and the intent of the parties but this is not true when the instruments, though both relating to the same transaction, concern separate subjects or provide for different things.

8. The making of a will by which all property of a testator is given to a named beneficiary is not of itself evidence of the existence of a contract in reference thereto between the testator and the beneficiary nor is it evidence of part performance of a contract in the absence of other evidence clearly indicating it was made pursuant to such an agreement.

9. The evidence must be clear, satisfactory, and convincing to sustain a claim of a person to the estate of a deceased person by virtue of an alleged oral contract.

Lyle Q. Hills, Omaha, for appellants.

Mecham, Stoehr, Rickerson & Sodoro, Crossman, Barton & Quinlan, Omaha, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

BOSLAUGH, Justice.

The object of this litigation is to secure specific performance of an alleged oral contract by which appellants claim Leo G. Butler and Margaret B. Butler obligated themselves to give their property by wills to appellants.

The following is the substance of the petition of appellants: Leo G. Butler and Margaret B. Butler, husband and wife, by an oral agreement made August 19, 1950, with appellants bound themselves to devise and bequeath all their property, except five nominal legacies, to appellants in consideration of their agreeing to devise all their property to Leo G. Butler and Margaret B. Butler with the exception of two nominal legacies. In performance of the agreement each of the parties thereto on the date stated made a will. A copy of each of the wills is attached to and made a part of the petition. The wills were each prepared by the same lawyer, made at the identical time, attested by the same witnesses, and each will was deposited in the county court of Douglas County. Margaret B. Butler died during June 1956. Leo G. Butler was named as the only beneficiary of the will of his wife but no proceedings were had for the probate of her will or for the administration of her estate. Leo G. Butler, on or about January 15, 1957, for the purpose of defrauding appellants, made a second will and thereby and therein revoked the will be made on August 19, 1950, and thereby violated the oral agreement made with appellants on August 19, 1950. They did not learn of the second will of Leo G. Butler until after his death late in January 1957. Appellants in good faith performed the oral agreement of August 19, 1950. Leo G. Butler by the terms of his second will gave $15,000 in cash to The Omaha Home for Boys, one of the appellees, and the residue of his property to Fred Butler, his brother, one of the appellees. The gifts made by the second will and the claimed rights of O. M. Campbell as executor of the will constitute a cloud upon the title of appellants to the property owned by Leo G. Butler at the time of his death for the removal of which appellants have no adequate remedy at law. Appellants asked for specific performance of the oral agreement.

The copy of the will of Leo G. Butler dated August 19, 1950, attached to the petition, provided for the payment of the debts and the expenses of his last illness and burial and subject thereto gave all his property to his wife, Margaret B. Butler; contained a statement that the will was made as a result of an understanding and agreement that his wife would make a like will; provided that in case of the death of the testator and his wife in a common disaster or if his wife should predecease him, a gift of $1 was made to Fred Butler and the residue of the property of the testator was given to appellants equally or in case of the death of either before the death of the testator, then the survivor should take the residue and if appellants predeceased the testator the residue was given to the Masonic Boy's Home of Omaha, Nebraska; and provided for the appointment of his wife as executrix if she survived the testator, otherwise Lyle Q. Hills was named executor and he was appointed attorney for the representative of the estate of the testator. This was the pattern of each of the wills made August 19, 1950, and they were identical except as to the name of the person making the will, the names of the beneficiaries, and the person designated as executor. The will of Leo G. Butler made January 15, 1957, gave The Omaha Home for Boys $15,000 in cash; gave Fred Butler, brother of the testator, the residue of his estate; and appointed O. M. Campbell executor of it.

The answer of O. M. Campbell denied the statements of the petition. The answer of Fred Butler denied the averments of the petition except it admitted the residences of the parties and the corporate status of The Omaha Home for Boys as alleged in the petition and that Leo G. Butler made a will on January 15, 1957, which revoked all prior wills made by him. The new matters of the pleading of Fred Butler were: The probate of the will of Leo G. Butler made January 15, 1957, and the appointment and qualification of O. M. Campbell as executor thereof; the execution of a written contract on August 19, 1950, by Leo G. Butler and Margaret B. Butler and by appellants, together with an addendum thereto, copy of which is made a part of the answer, by virtue of which appellants obligated themselves to make wills in favor of Leo G. Butler and Margaret B. Butler but they or either of them did not agree to make a will or wills in favor of appellants; the written contract of August 19, 1950, made a part of the answer, was a result of negotiations between the parties thereto and evidenced the complete agreement in reference to the subject matter of the negotiations, was duly signed and delivered by the parties, and constituted the exclusive medium of ascertaining the agreement between the signatory parties; and that Leo G. Butler and Margaret B. Butler fully performed all the terms of the contract required to be performed by them. The prayer of the answer was dismissal of the action of appellants. The written contract of August 19, 1950, made a part of the answer of Fred Butler, will be later set out and discussed herein.

The Omaha Home for Boys by an allegation in its answer denied the statements of the petition and asked that the case be dismissed.

The reply of appellants to the answer of Fred Butler was a denial and an admission that appellants and Leo G. Butler and Margaret B. Butler made the contract, a copy of which is attached to the answer of Fred Butler.

The trial court found generally for appellees and against appellants and that Leo G. Butler and Margaret B. Butler, or either of them, did not promise to make a will in favor of appellants or either of them. A judgment of dismissal of the case was rendered and the motion of appellants for a new trial was denied. This appeal presents the record the trial de novo in this court.

Appellants were the owners of residence property at 1724 North Sixtieth Street, the legal description of which was Lots 245 and 246 of Morningside Addition, Douglas County, where they had resided since December 26, 1940. They were each 70 years of age on August 19, 1950, at the time of the transaction concerned in this litigation. Leo G. Butler was then 61 years of age and Margaret B. Butler was then 47 years of age. These four persons had been acquainted and friendly for about 20 years. John D. Gerdes was disabled by a back condition. Neither he nor his wife, Blanche Gerdes, were gainfully employed and they had no income except the amount contributed to them as old age assistance. Leo G. Butler and Margaret B. Butler were each gainfully employed and continued to be until their respective deaths. Blanche Gerdes testified that there was an old age assistance lien on the property of appellants. She further testified: 'That is the only way we could live, and that is why we took on these other doings because we could not get along when he was crippled, and we could not get enough from old age assistance to help us our, so we decided to do something else with our place.'

It was under these necessitous and distressing circumstances that appellants...

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    ...not be construed together even though the same parties and the same subject matter may be concerned. Gerdes v. Omaha Home for Boys, 166 Neb. 574, 585-86, 89 N.W.2d 849, 856 (1958). Ambiguity exists in an instrument when a word, phrase, or provision in the instrument has, or is susceptible o......
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